Citation Nr: 1302968
Decision Date: 01/28/13 Archive Date: 02/05/13
DOCKET NO. 10-29 125 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUES
1. Entitlement to service connection for bilateral hearing loss.
2. Entitlement to service connection for right shoulder disability.
3. Entitlement to service connection for neck disability.
4. Entitlement to an initial disability rating higher than 10 percent for low back disability.
5. Entitlement to an initial disability rating higher than 10 percent for left lower extremity radiculopathy.
6. Entitlement to a total disability rating based on individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. J. Kunz, Counsel
INTRODUCTION
The Veteran served on active duty from January 1965 to September 1970. He also had reserve service.
This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Houston, Texas Regional Office (RO) of the United States Department of Veterans Affairs (VA). In a January 2010 rating decision, the RO granted service connection for lumbosacral spine degenerative joint disease, and assigned a 10 percent disability rating. The RO granted service connection for left lower extremity radiculopathy, and assigned a 10 percent disability rating. In a September 2010 rating decision, the RO denied service connection for bilateral hearing loss and right shoulder disability. As explained in the decision herein, the issue of service connection for neck disability is raised by the record.
In October 2012, the Veteran had a Travel Board hearing before the undersigned Veterans Law Judge.
In the October 2012 hearing, the Veteran indicated that he believed that his service-connected disabilities made him unemployed. The United States Court of Veterans Appeals for Veterans Claims (Court) has held that a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or, if the disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that VA must consider TDIU as part of the issue of a proper disability rating whenever there is "cogent evidence of unemployability, regardless of whether [the claimant] states specifically that he is seeking TDIU benefits." Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009).
The Veteran has not formally filed a claim for TDIU, and the RO has not adjudicated such an issue. Reading Rice and Comer together, noting that the Veteran has informally raised the TDIU issue, and further noting that benefits that the Board is granting in this decision might affect a TDIU claim, the Board will remand the TDIU for the RO to consider that issue.
The Board has not only reviewed the physical claims file, but also the file for the case on the Virtual VA electronic file system, to ensure a total review of the evidence.
The issues of higher initial ratings for low back disability and left lower extremity radiculopathy and the issue of a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. Bilateral hearing loss developed as a result of severe and persistent noise exposure during service.
2. The Veteran did not sustain ongoing right shoulder disability in a 1968 helicopter crash nor at any other time during service.
3. Cervical spine degenerative disc disease developed as a result of injury in a 1968 helicopter crash.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was incurred as a result of noise exposure during service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012).
2. No right shoulder disability was incurred or aggravated in service, nor may any right shoulder arthritis be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).
3. Neck disability diagnosed as cervical spine degenerative disc disease manifested as a result of the injury in service. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Hearing Loss
The Veteran contends that he has hearing loss as a result of noise exposure during service. In this regard, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury, or for aggravation of a non-service-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2012).
The Court has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
The Court has stated that, under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or in certain circumstances lay evidence of a nexus between the present disability and the post-service symptomatology. See Savage, 10 Vet. App. at 495-96; Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The Court has indicated that "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).
Service connection for certain chronic diseases, including sensorineural hearing loss and arthritis, may also be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.
In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.
For VA disability benefits purposes, impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2011). The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). In the Hensley case, the Court noted that 38 C.F.R. § 3.385, "does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service." 5 Vet. App. at 159. The Court explained that:
[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.
5 Vet. App. at 160.
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
During service, the Veteran's duties were as a helicopter pilot. He has reported that he was exposed to considerable noise from helicopter engines. He states that he was told during service that helicopter pilot duties would in most individuals produce high frequency hearing loss. Decibel losses recorded on service department audiological examinations prior to November 1, 1967, are assumed to be measured in American Standards Association (ASA) units, and are converted to International Standards Organization (ISO) units to facilitate comparison of results. With conversion to ISO units, audiological evaluation in April 1965 showed pure tone thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
10
10
5
LEFT
25
10
10
5
With conversion to ISO units, audiological evaluation in June 1966 showed pure tone thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
5
5
5
15
LEFT
10
5
5
10
5
In October 1967, the Veteran was seen in a service emergency room for a sensation of blockage of the ears when coming down from 5500 feet. The clinician prescribed decongestant medication. On follow-up three days later, the blockage of the ears was much improved.
With conversion to ISO units, audiological evaluation in July 1967 showed pure tone thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
5
10
10
0
LEFT
10
10
10
10
5
On audiological evaluation in November 1967, pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
-5
-5
0
-5
-5
LEFT
0
-5
-5
-5
0
On audiological evaluation in March 1969, pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
0
0
0
0
LEFT
0
0
0
0
On audiological evaluation in March 1970, pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
10
5
10
LEFT
10
10
5
10
On audiological evaluation on the Veteran's service separation examination in July 1970, pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
5
5
15
LEFT
10
10
5
10
The reports of examinations during active service do not indicate that speech audiometry was performed.
There has been no indication that the Veteran's hearing was tested during the year following his separation from active service. The claims file contains reports of examinations performed in November 1981, several years after the active service period, for reserve service purposes. On audiological evaluation at that time, pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
15
20
15
20
LEFT
15
15
15
15
15
Many years later, in VA primary care in April 2010, the Veteran reported decreased hearing with some difficulty differentiating words, In May 2010, he had a VA audiology evaluation. Pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
15
20
35
45
LEFT
10
15
25
40
50
Hearing aids were ordered for the Veteran. Records of VA outpatient treatment in 2010 to 2012 reflect that the Veteran continued to use hearing aids.
On VA audiological evaluation in May 2012, pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
25
25
60
65
60
LEFT
25
30
60
65
60
Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. The examining audiologist's diagnosis was bilateral sensorineural hearing loss. About a week later, the Veteran's claims file was provided to the examiner to review. The examiner reviewed the file, and stated that testing showed normal hearing in 1965 through 1970 and in 1981.
The examiner expressed the opinion that military noise exposure did not contribute to the Veteran's current hearing loss.
In October 2012, the Veteran had a consultation with private ear, nose, and throat (ENT) specialist S. G. M., M.D. The Veteran reported having difficulty hearing in both ears. He indicated that his severe hearing loss began gradually years earlier. He reported that he was exposed to noise when he served as a helicopter pilot for over five years during the Vietnam War. Dr. M. found that the Veteran has bilateral hearing loss consistent with noise induced hearing loss. Dr. M. reported that he reviewed the Veteran's military medical records. Dr. M. stated that the Veteran's hearing loss was greater than expected for his age. Dr. M. expressed the opinion that noise exposure during military service more likely than not contributed to the Veteran's current hearing loss.
In the October 2012 Travel Board hearing, the Veteran reported that the helicopters he flew during service had turbine engines. He stated that the sergeants who trained him told him that sitting under such turbine engines caused high frequency hearing loss. He reported that Dr. M., who provided the opinion regarding the etiology of his hearing loss, had previously been a military doctor.
Testing during the Veteran's service generally did not show hearing levels that constitute impaired hearing for VA benefits purposes. The test results do show, however, some increase over time in the auditory thresholds, particularly at high frequencies. The reserves examination in 1981 again showed hearing better than the levels defined as "impairment", but with higher thresholds than before. The VA audiologist who examined the Veteran opined that military noise exposure did not contribute to the Veteran's current hearing loss. Dr. M., who also reviewed the Veteran's military records, opined that noise exposure during service more likely than not did contribute to current hearing loss. Both clinicians are qualified to consider the etiology of hearing loss, and both reviewed the Veteran's old testing records.
Neither clinician's opinion is distinctly more valid or persuasive than that of the other. As a claim is to be granted when the evidence is approximately balanced, and is not to be denied unless the preponderance of the evidence is against the claim, the Board resolves reasonable doubt in the Veteran's favor, and grants service connection for bilateral hearing loss.
Right Shoulder Disability and Neck Disability
The Veteran was in a helicopter crash in service in 1968, and he was treated then for low back injury. The Veteran sought and the RO established service connection for low back disability. The Veteran has appealed the RO's denial of service connection for right shoulder disability. He essentially contends that right shoulder disability developed as a result of injury sustained in the helicopter crash during service. As will be explained herein, the assembled evidence also raises a question of entitlement to service connection for current neck disability. As some of the same evidence addresses the right shoulder and neck issues, the Board will discuss those issues together in this section of the present decision.
During the Veteran's service, medical examinations in 1965, 1966, and 1967 did not reveal any right shoulder problems or neck problems. In June 1968, the Veteran received medical treatment the same day he was involved in an aircraft accident. He reported pain in the tip of his coccyx, a slight abrasion on his right arm, and burning skin on his feet and ankles (from exposure to fuel). The treating clinician observed that the tip of the Veteran's coccyx was very tender, and that there was erythema in the areas of fuel contact. X-rays showed no fracture of the coccyx and showed a normal lumbosacral spine. The Veteran was returned to duty four days after the accident, and follow-up due to ongoing lumbosacral pain occurred about two weeks after the accident. Except for the initial report of a slight abrasion on the right arm, the treatment notes do not provide further information about the right upper extremity. Those records also are silent regarding the Veteran's neck. The medical records from the remainder of the Veteran's active service, including the reports of medical history and examination in July 1970 for separation from service, are silent with regard to the Veteran's right shoulder or his neck.
There is no indication that the Veteran had right shoulder treatment or any medical examination during the year following his 1970 separation from service. In the reserve service history and examination in November 1981, the Veteran did not report any history of shoulder or neck problems, and examination did not reveal any upper extremity or spine abnormalities.
In VA outpatient treatment in June 2008, the Veteran reported a long history of low back problems. He also stated that he had numbness in his thumbs that especially occurred during cold weather and that was progressively worsening.
In April 2009, private neurosurgeon M. J. C., M.D., wrote that he had reviewed the Veteran's service medical records and medical records. Dr. C. noted that during service in 1968 the Veteran was in an accident in which his helicopter crash landed. Dr. C. stated that the Veteran had violent injury to his lower spine and complained of coccygeal pain immediately. Dr. C. described the current condition of the Veteran's low back.
In VA treatment in April 2010, the Veteran reported that his right arm and right hand had been "weak" since 1970.
In August 2010, Dr. C. wrote that he saw the Veteran due to ongoing problems with his neck and right arm. Dr. C. stated that the Veteran reported having always had problems with both his neck and his lower back since the 1968 helicopter accident. He indicated that the Veteran had lived with weakness in his right arm and atrophy of that arm compared to the left. Dr. C. reported that an August 2012 cervical spine MRI showed severe degenerative disc changes.
Dr. C. expressed the opinion that his evaluation demonstrated damage of the correct age corresponding to injury in 1968, and that cervical spine degeneration more likely than not occurred as a result of the 1968 accident.
On VA examination in June 2012, the examiner reported having reviewed the Veteran's claims file. The examiner noted a history of superficial abrasion of the right arm in June 1968, and current right arm weakness of unknown cause. The Veteran reported that since 1968 helicopter accident he had perceived weakness of his right arm. He related pain in the top of his right shoulder, in his right arm, and in his right axilla down to his mid chest.
On examination, the range of motion of the Veteran's right shoulder was to 170 degrees of flexion and 170 degrees of abduction, with no objective evidence of painful motion. After three repetitions of the motions, the ranges were the same. The examiner found that the Veteran had weakened movement of the right shoulder, with 4/5 muscle strength on flexion and abduction, and pain on palpation of that shoulder. The examiner found that the Veteran had generalized weakness of all muscle groups in the right upper extremity, but did not have atrophy. Right shoulder x-rays showed no evidence of fracture or dislocation. An osteophyte and a few cysts were noted. Cervical spine x-rays showed advanced multilevel degenerative disc disease. Electromyography (EMG) and nerve conduction studies (NCS) showed no electrodiagnostic evidence of right median or ulnar neuropathy or right cervical radiculopathy.
The examiner expressed the opinion that it was less likely than not that any current right shoulder problem was incurred in service or caused by injury in service. The examiner explained that the Veteran did not have a true shoulder problem, but rather that examination findings were more consistent with a cervical spine condition. The examiner noted that no shoulder symptoms were shown in service medical records.
In the October 2012 Travel Board hearing, the Veteran reported that in the helicopter accident in service the helicopter's engine failed and it crash landed and went over on its side. The Veteran asserted that the accident compressed his spine. He reported that after the accident he was not able to throw a softball for a while. He stated that he had noticed right arm weakness continually since the accident. He indicated that although he is right handed, he must do tasks that require strength predominantly or completely with his left hand. He stated that he also experienced episodes of an acute electrical sensation in his right arm, followed by a period of exacerbated weakness of the arm and some paralysis of the fingers.
The Veteran sustained injury in the 1968 helicopter accident, but the medical records from service reflect a right arm abrasion and no other complaints involving the right shoulder or arm. He was not shown to have compensable right shoulder arthritis during the year following service, so there is no basis to presume service connection for arthritis. Medical records from 2008 forward reflect the Veteran's reports of right upper extremity symptoms, but there are no medical records from service or more than 35 years after service to support the Veteran's recent claim of right shoulder problems residual to the crash. The Veteran's silence during service in regard to his shoulder, while he was reporting low back pain, occurred at and around the time of the accident, and thus is more likely to be accurate than his accounts many years later of shoulder problems from the accident forward. The Board thus finds that the preponderance of the evidence by persuasive weight is against service connection for right shoulder disability.
In this regard, the Board does not ignore the Veteran's concerns regard a feeling of "weakness" in his right shoulder (it fact, it is the Veteran's concerns that have lead to the findings below). However, while the Veteran may have such weakness, the best evidence in this case does not connect this symptoms to a clear disability of the right shoulder associated with the accident in service. It is simply less likely (a less than 50% percent chance) that the Veteran's current feeling of weakness in his right shoulder is the result of a problem in the right shoulder that has any connection with the accident he had many years ago, other than with regard to what will be found below.
Dr. C. opined in 2010 that it was more likely than not that the Veteran's current disorder of the Veteran's neck is attributable to the 1968 accident. Both MRI reviewed by Dr. C. and x-rays reviewed by the VA examiner show cervical spine degenerative disc disease (a clear disability). The VA examiner found that the Veteran's right upper extremity symptoms are more consistent with his cervical spine disorder. Competent and credible medical evidence supports a finding that current cervical spine disc disease is attributable to injury sustained in the 1968 helicopter crash, and thus supports service connection for that neck disorder.
The Board notes that the RO has not addressed the issue of service connection for "neck" disability directly. It appears, though this is not clear, that the problem the Veteran has indicated was with his shoulder may be actually be associated with the neck, as suggested by both VA and the private doctors. As the Board is granting service connection for that disability, the Board's action in addressing the issue when the agency of original jurisdiction has only addressed it indirectly does not prejudice the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993).
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).
The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The Court has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).
The RO provided the Veteran with VCAA notice in letters issued in August 2009 and July 2010. Those letters addressed the information and evidence necessary to substantiate claims for service connection, and informed the Veteran how VA assigns disability ratings and effective dates. The letters also addressed who was to provide the evidence.
The claims file contains the Veteran's service medical records, post-service medical records, statements from the Veteran, reports of VA medical examinations, and the transcript of the October 2012 hearing. With respect to the claims that the Board is deciding at this time, the Veteran has not identified potentially relevant evidence that is not associated with the claims file.
The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the claims, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration on the merits of the claims that the Board is deciding at this time. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).
ORDER
Entitlement to service connection for bilateral hearing loss is granted.
Entitlement to service connection for right shoulder disability is denied.
Entitlement to service connection for neck disability is granted.
REMAND
The Veteran was in a helicopter crash during service in 1968. He was treated for coccyx and low back pain. In July 2009, he submitted a claim for service connection for a back condition. The RO granted, effective July 27, 2009, service connected for lumbosacral spine degenerative joint disease, and assigned a 10 percent disability rating, and granted service connection for left lower extremity radiculopathy, and assigned a 10 percent disability rating. The Veteran appealed the initial 10 percent rating that the RO assigned for lumbosacral spine degenerative joint disease and the initial 10 percent rating that the RO assigned for left lower extremity radiculopathy.
The Board is remanding the low back and left lower extremity rating issues for the development of additional evidence. The Veteran had VA examinations that addressed his low back and his radiculopathy in December 2009 and June 2012. There are questions regarding the June 2012 examination. In addition, potentially relevant information that has been raised since that examination. The report of the June 2012 examination contains an apparent contradiction or possible error. The examiner checked "no" as to whether the Veteran was able to perform three repetitions of motions of the thoracolumbar spine. The examiner then reported the ranges of motion after at least three repetitions. In addition, in the June 2012 examination, the examiner apparently concluded that the Veteran does not have intervertebral disc syndrome, and the examiner left blank the question as to the total duration of any incapacitating episodes of disc disease. Since the 2012 examination, the Veteran has reported that he does have episodes during which he is incapacitated because of low back symptoms. In response to the June 2012 examination report, the Veteran has asserted that the examiner failed to take into account the Veteran's report that he sometimes drags his left foot when walking.
The Veteran should have a new VA examination to address the questions and the new information. The new examination should provide a clear indication as to whether the Veteran is able to perform at least three repetitions of motions of the thoracolumbar spine, and whether there is any change in symptoms or range of motion following such repetitions if such repetitions are possible.
The new examination should include an indication as to the number and duration of incapacitating episodes of disc disease that the Veteran has had over the year preceding the new examination. The examiner may report whether the information is based solely on the Veteran's own account or whether the Veteran has provided records or other supporting evidence regarding such episodes. The rating for intervertebral disc disease may be affected by the duration of incapacitating episodes of back disability. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Because the rating schedule provides that definition for incapacitating episodes, the Veteran should be afforded an opportunity to provide medical records or statements that help to show the number and duration of incapacitating episodes that he has had.
The new examination should address the Veteran's report that his low back disability and radiculopathy are sometimes manifested by dragging of the left lower extremity. The examiner should carefully observe whether on examination there is any dragging of the left lower extremity. If no such manifestation exists at the time of examination, the examiner should provide an opinion as to whether the intermittent dragging the Veteran reports is plausibly and reasonably consistent with the assembled evidence regarding his low back disability and left radiculopathy.
The RO should then readjudicate the low back and left leg radiculopathy rating issues based on the expanded record. After readjudicating those rating issues and implementing the benefits (service connection for bilateral hearing loss and neck disability) that the Board has granted in this decision, the RO should develop evidence as necessary and adjudicate a claim for a TDIU for the Veteran.
The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The RO should provide the examiner who will review the file in conjunction with this remand all evidence that is in the Virtual VA electronic claims file and not in the paper claims file and that is relevant to the remanded claim.
Accordingly, the case is REMANDED for the following action:
1. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The AMC or RO is to review the electronic file. With all documents contained therein deemed to be relevant to the remanded claims and not duplicative of the documents already found in the paper claims file, take action to ensure that the records in the electronic file are made available (whether by electronic means or by printing) to the clinicians who are asked to review the claims file and provide medical findings in conjunction with the development requested herein.
2. Provide the Veteran an opportunity to submit evidence supporting or showing the number and duration of incapacitating episodes of lumbosacral disc disease that he has had in recent years. Inform the Veteran that for disability rating purposes VA defines an incapacitating episode as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.
3. Schedule the Veteran for a VA examination, to address and clarify the current manifestations of his lumbosacral degenerative disc disease and left lower extremity radiculopathy. Provide the examiner with the Veteran's claims file for review. The examiner is to review the claims file and examine the Veteran. Ask the examiner to provide clear and thorough explanations of the reasoning leading to each opinion provided as requested herein.
The examination report should include all the findings ordinarily considered in determining the current manifestations of disc disease and lower extremity radiculopathy, and should specifically address the following:
A. Report clearly whether the Veteran is able to perform at least three repetitions of motions of the thoracolumbar spine, and whether there is any change in symptoms or range of motion following such repetitions if such repetitions are possible.
B. Record the number and duration of incapacitating episodes of disc disease that the Veteran has had over the year preceding the examination. The examiner may report whether the information is based solely on the Veteran's report or whether the Veteran has provided records or other supporting evidence regarding such episodes. VA defines an incapacitating episode as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.
C. The Veteran has reported that his low back disability and radiculopathy are sometimes manifested by dragging of the left lower extremity. Carefully observe whether on examination there is any dragging of the left lower extremity. If no such manifestation exists at the time of examination, provide an opinion as to whether the intermittent dragging the Veteran reports is plausibly and reasonably consistent with the assembled evidence regarding his low back disability and left leg radiculopathy.
4. After the completion of the instructions 1 to 3 above, review the expanded record and readjudicate the issues of the initial ratings for lumbosacral spine degenerative disc disease and left lower extremity radiculopathy.
5. After the completion of instructions 1 to 4 above, and after implementing service connection for bilateral hearing loss and neck disability (which the Board granted in its 2013 decision), develop evidence as needed and adjudicate a claim for a TDIU for the Veteran.
6. Thereafter, if any of the remanded claims (for higher ratings for low back disability and left lower extremity radiculopathy and for a TDIU) remains less than full granted, issue a supplemental statement of the case and afford the Veteran an opportunity to respond. Thereafter, return the case to the Board for appellate review if otherwise in order.
The Board intimates no opinion as to the ultimate outcome of the remanded issues. The Veteran has the right to submit additional evidence and argument on those issues. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs